132 Conn. App. 526
Conn. App. Ct.2011Background
- Asif pleaded guilty under the Alford doctrine in two dockets to two counts of larceny in the third degree, resulting in a total sentence of ten years with four years to be served, suspended, and five years of probation.
- An amended habeas petition in May 2009 alleged ineffective assistance of trial counsel, including failure to advise about immigration consequences.
- The habeas court denied the petition and denied certification to appeal.
- In March 2010, Asif filed the current habeas petition alleging not being advised of deportation consequences; he claimed Padilla v. Kentucky supports retroactive application.
- The habeas court dismissed the petition under Practice Book § 23-29(3) as presenting the same ground as a prior petition and lacking new facts or evidence.
- The appellate court affirmed, holding Padilla did not provide a new fact or permit a new petition on the same grounds; the petition remained barred as successive; the appeal was dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the habeas court abused its discretion in denying certification to appeal | Asif contends Padilla creates a new fact entitling relief | The petition rests on the same ground and lacks new facts; Padilla does not create a new fact | No abuse; petition denied as successive |
| Whether Padilla v. Kentucky constitutes a new fact permitting a successive petition | Padilla is a new fact because it changes the immigration consequences rule | Padilla does not constitute a new fact under § 23-29(3) | Padilla does not qualify as a new fact; same grounds; petition properly dismissed |
| Whether the petition was properly dismissed under Practice Book § 23-29(3) | The ground is new due to Padilla’s retroactive impact | The ground is same as prior petition; no new facts | Properly dismissed as successive |
Key Cases Cited
- Simms v. Warden, 230 Conn. 608 (1994) (abuse of discretion standard for certification to appeal)
- McClendon v. Commissioner of Correction, 93 Conn. App. 228 (2006) (successive petitions require new facts or evidence)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must inform noncitizen of deportation consequences)
- North Carolina v. Alford, 400 U.S. 25 (1970) (recognizes dual nature of guilty pleas under Alford doctrine)